Judgment : ( 1 ) THE petitioners, who are accused in a case registered for the offence punishable under Sections 450 and 376 (2) (g) of the Indian Penal Code, based on a complaint given by one Rohia Beebi, wife of one Arockiadoss, are seeking bail in this Court under Section 439 of the Code of Criminal Procedure. ( 2 ) THE petitioners 1 to 3 were remanded to judicial custody on 9-8-97 and the fourth petitioner was remanded on 12-8-1997. They filed an application for bail before the Sessions Court at Pondicherry and the same was dismissed on 22-8-1997. Again, they moved another application seeking for the same relief before the same Court, which was also dismissed on 18-9-1997. Hence, the present petition before this Court has been filed on 15-10-1997. The case was heard on several dates. In view of the peculiar circumstances of the case, notice was issued to the Women Lawyers Association to render assistance to this court, Ms. K. Shanthakumari, representing the said Association appeared before the Court, on receipt of notice and submitted on various aspects with reference to the investigation and trial and the concept of bail in a case of gang rape. ( 3 ) MR. Palanikumar, learned Counsel appearing for the petitioners and Mr. Natarajan, learned Additional Public Prosecutor (Pondicherry), representing the State of Pondicherry, would on their respective sides put forth the submissions by citing various authorities. Before considering the question whether the relief sought for could be granted or not, let me at the out set summarize the brief facts of the case which are relevant for the disposal of this bail petition. ( 4 ) ONE Muslim woman, aged about 31 years, is the unfortunate victim in this case of gang rape. She married a Christian by name Arockiadoss ten years ago and two children where born out of their wedlock; one boy is aged about nine years and the other girl aged about seven years. They lived in a separate house at Kurumampet, Pondicherry. The parents of the spouses were against their marriage. Therefore, without getting the support of their respective parents they lived with their children in the place mentioned above. The husband arockiadoss is working in a canteen in a cinema theatre. He used to come to the house late in the night, after the night show was over. The parents of the spouses were against their marriage. Therefore, without getting the support of their respective parents they lived with their children in the place mentioned above. The husband arockiadoss is working in a canteen in a cinema theatre. He used to come to the house late in the night, after the night show was over. The petitioners John, ramalingam and Raman live in the same area. The complainant used to see them when they play cricket in the ground situated near her place of residence. The petitioner John even when he was a small boy, used to come to the house of the complainant and play with her children. He moved with the complainant with affection by calling her as his elder sister (akka ). ( 5 ) ON 3-8-1997, being Sunday, the fateful day, at about 9. 00 p. m. the complainant, after serving food to her children and to herself, took her bed. She suddenly heard a sound of knock at the door. When she switched on the light in the kitchen and peeped through the window, she saw the petitioner John standing in the varandah. It was at abut 10. 30 p. m. When she asked him as to why he knocked at the door, he said, (Tamil version ). Then, the complainant took out a plastic bottle containing water and opened the main door and gave the bottle. In the verandah she saw another man standing with him. When she requested him to give back the bottle, so that she could go and take her bed, unexpectedly, the said John pushed the door aside and came inside. He was having a small pen knife in his hand. He put the knife on her neck and asked her not to shout. Then the other person who was standing with John also entered into the house and both of them forcibly caught hold of her hip and took her to the backyard, garden and thereafter she was forcibly taken to the nearby land. When she tried to wriggle out by shouting, both of them gagged her mouth and at that time the other two persons were found standing in the nearby land. All of them took her at the corner of the land and she was pushed on the floor. When she tried to wriggle out by shouting, both of them gagged her mouth and at that time the other two persons were found standing in the nearby land. All of them took her at the corner of the land and she was pushed on the floor. Thereafter all of them threatened her that if she made any sound, they would kill her husband and children too. She became scared and she was not able to shout nor move. Then, the petitioners one after another committed rape on her. While one person was committing rape on her, the other person caught hold of the other parts of her body. Within few minutes all of them forcibly committed rape on her, against her will. Thereafter, the petitioner John took her back to her home. When she was brought back to the backyard of her house, he again had raped her and threatened her if this is divulged to anyone else, her entire family would be ruined. ( 6 ) AFTER 1. 00 a. m. the husband of the victim came and took bed. When the husband found some injuries on her face, he enquired abut the same. But, she did not tell the truth to him. She thought that if anything is divulged to him, not only it would endanger his life, but also she feared that her husband would drive her out. So, the next day, she went to her parents house and on the advice of her parents, she went to the police station and lodged a complaint on 6-8-1997 which was registered in Crime No. 49 of 1997 for the offence punishable under section 450 and 376 (2) (g) of the Indian Penal Code. ( 7 ) AFTER registration of the case, the respondent took up the case for investigation and recovered the apparels worn by the victim at the time of the crime. The petitioner Arasappan alias Shankar (A-2), Murugan alias ramalingam (A-3) and Raman alias Ramu (A-4) were arrested on 9-8-1997 and the petitioner John (A-1) was arrested on 11-8-1997. Based on the confession of a-1 John, the weapon used for threatening i. e. the knife was seized from his house. Since the petitioner Shankar was reported to be not from the local area, whereas the other petitioners were from the same locality, identification parade was conducted by the learned Magistrate for him alone. Based on the confession of a-1 John, the weapon used for threatening i. e. the knife was seized from his house. Since the petitioner Shankar was reported to be not from the local area, whereas the other petitioners were from the same locality, identification parade was conducted by the learned Magistrate for him alone. In the parade, the victim correctly identified the petitioner Shankar. On requisition, the learned magistrate recorded the statement of the victim under Section 164 of the Code of Criminal Procedure. The semen samples from all the accused persons were taken and the same were sent along with vaginal swabs and the apparels worn by the victim at the time of crime, for comparison to Central Forensic Science laboratory on 9-9-1997. ( 8 ) AS stated earlier, though the application was filed praying for bail under section 439 of the Code of Criminal Procedure on 15-10-1997, this matter has been periodically adjourned and the arguments were heard from the parties on various dates. While the application was pending, the petitioners attempted to file a petition under Section 439 read with 167 (2) of the Code of Criminal procedure in the office on 11-11-1997 by adding additional grounds under section 167 (2) of the Code of Criminal Procedure. For the best reasons known to the petitioners, this was not numbered and on 13-11-1997, the Counsel for the petitioners made an endorsement as not pressed on the petition, in the office itself. In view of the said endorsement the office returned the papers as not pressed. ( 9 ) WHEN the petition came up for the hearing, Counsel for the petitioner submitted that the petitioners are entitled to bail as they have been falsely implicated and further contended that the accusation contained in the complaint cannot be said to be true for two reasons. One is that the occurrence took place on 3-8-1997, but the complaint has been lodged on 6-8-1997 and the other is that the doctor who examined the victim found that there was no injury either on the body or on the private parts of the victim. One is that the occurrence took place on 3-8-1997, but the complaint has been lodged on 6-8-1997 and the other is that the doctor who examined the victim found that there was no injury either on the body or on the private parts of the victim. When the matter came up again for final disposal, on 17-11-1997, the Counsel for the petitioners produced original petition filed under Section 167 (2) of the Code of Criminal procedure which was returned by the office as not pressed and contended that the petitioners are entitled to bail under Section 439 read with 167 (2) of the Code of Criminal Procedure. ( 10 ) THE learned Counsel for the petitioners also placed reliance in the judgment in Mohammed Iqbal Madar Sheik and others vs. State of Maharashtra in which the following observation is made: "if an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167 (2), that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated". The learned Counsel for the petitioners would cite other authorities in order to substantiate his other points referred to above: (1) Shankar vs. State of Rajasthan; (2) Banti alias Blander Singh vs. State of Madhya Pradesh (3) Balia alias Balaram Behera and another vs. State of Orissa ( 11 ) IN the first decision, bail was granted in a rape case, since medical examination did not support the statement of victim and that the statement of the victim recorded under Section 161 of the Code of Criminal Procedure had given out a different story. In the second decision, the Madhya Pradesh High court acquitted the accused in a rape case on the ground that there was a delay of five days in lodging the complaint and the explanation for the said delay was found to be false. In the third decision the accused was acquitted in a rape case, since it was found that the prosecutrix had motive to falsely implicate the accused persons and the doctors opinion with regard to the facts of injuries on the victim was not corroborated by the evidence of the prosecutrix. In the third decision the accused was acquitted in a rape case, since it was found that the prosecutrix had motive to falsely implicate the accused persons and the doctors opinion with regard to the facts of injuries on the victim was not corroborated by the evidence of the prosecutrix. Therefore, the citations, would not, in my view, give a helping hand to the petitioners, since the statement of the victim recorded initially and the statement recorded under section 164 of the Code of Criminal Procedure, in this case, give out the narration of the events without any contradiction and the delay of three days in lodging the complaint has been explained in the first information report itself and that cannot be looked into now, at this stage, especially when this Court as well as the Apex Court would hold that invariably in rape cases there may be some delay, because the. victims would be reluctant to go to the police station. ( 12 ) THE following are the decisions cited by the Public Prosecutor and by mrs. Shanthakumari, Secretary representing the Woman Lawyers Association, in support of the prosecution case: balwant Singh and others vs. State of Punjab in which it has been observed as follows:"it is submitted that the prosecutrix was expected to offer resistence which would normally cause certain injury on her body and particularly on the back. As there was no such injury, it should be held that there was no such incident as alleged. This argument, in our opinion, is devoid of merit. It cannot be said that whenever resistence is offered there must be some injury on the body of the victim. "it is held in Rajasthan vs. Narayan, as follows: "true it is that the complaint was lodged two days later but as stated earlier Indian Society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman". In Ramadas Mahadeorao Shrirao and others vs. State of Maharashtra it is held as follows:"similarly, the prosecutrix was examined after a week from the date of incident and, therefore, also no injuries could be seen. She identified the two applicants, i.e. applicants Nos. In Ramadas Mahadeorao Shrirao and others vs. State of Maharashtra it is held as follows:"similarly, the prosecutrix was examined after a week from the date of incident and, therefore, also no injuries could be seen. She identified the two applicants, i.e. applicants Nos. 1 and 2 in the identification parade and whether she had seen or not seen the accused prior to the identification parade, is not the aspect to be considered at this time. It is the matter to be considered at the time of trial". In State of Karnataka vs. Mehaboob and others the relevant portion is as follows:"as stated by her, she was threatened and bodily carried to the ditch in the nala and raped. It may be, being frightened she was unnerved or for fear of being assaulted she had not resisted, therefore, the fact that there was no injuries either on the prosecutrix or on the accused is no ground or a reason to hold that no such sexual offence had been committed". In State of Punjab vs. Gurmit Singh it is observed by the Division Bench thus: "the Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family". In Chaman Ali vs. State the Delhi High Court has observed thus:"she is a married woman. There are many constrains to a married woman before lodging the FIR. Hence mere delay of about 8 hours, to my mind, at this stage, is no ground for granting the bail. The delay by self is no ground to grant the bail, particularly her statement where she stated that she became so afraid that immediately she left the place of the petitioner for home and there she had to muster enough courage to tell this incident to her husband. I must say that for a married woman to tell her husband that rape had been committed on her must have required enough courage to do so. Moreover, the question of delay will be looked into on merits". I must say that for a married woman to tell her husband that rape had been committed on her must have required enough courage to do so. Moreover, the question of delay will be looked into on merits". ( 13 ) IN view of the above decisions, I cannot, at this stage, deal with the question of delay or absence of injury on the person and on that basis I cannot grant the relief sought for by the petitioners. As I stated earlier, even in the first information report, the delay has been explained and the victim was examined by the doctor only four days later in the circumstances stated above. Therefore, in my view, the absence of injuries or the unreasonableness in the explanation offered by the prosecution, would not affect the case of the prosecution however, it is for the trial Court to consider those aspects, in order to decide whether the case of the prosecution is true or not. ( 14 ) THE bail application is being opposed by the Additional Public prosecutor (Pondicherry) mainly on two grounds. One is that if the petitioners are released on bail, in view of the gravity of the allegations, they may abscond in order to escape from the clutches of law; and the other is that the petitioners in the event of granting bail would certainly threaten the victim and other witnesses, as they have done earlier due to which there is a delay of three days in lodging the complaint. In State vs. Jaspal Singh Gill the Supreme Court has observed as follows:"i am of the view that the Court before granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the state and similar other considerations". In Chuni Lal vs. State of Himachal Pradesh Himachal Pradesh High Court has observed as follows:"the prevailing lawlessness and increase in crime rate requires the matter to be seriously considered. Normally, we observe that rape, molestation and eveteasing are common offences, against minor girls, young and even married woman. In Chuni Lal vs. State of Himachal Pradesh Himachal Pradesh High Court has observed as follows:"the prevailing lawlessness and increase in crime rate requires the matter to be seriously considered. Normally, we observe that rape, molestation and eveteasing are common offences, against minor girls, young and even married woman. The experience of the victims is indeed traumatic. Rape victims not only suffer humiliation, but also undergo untold miseries. Unmarried victims lose prospects of marriage and married victims face desertion by husbands. Such is the fate and after effects of the ghastly crime committed by them. Even a woman of loose morals has self respect and dignity, she also cannot be violated by man at his pleasure. On the contrary a male dominated society often does not treat rapist with contempt. When released on bail, he moves in society like any other person". The Apex Court takes a very serious view in the matter relating to the crime against women. In fact, according to Supreme Court, the offence of rape is the most heinous crime. In respect of those offences, the Apex Court has held elaborately as to how the trial Courts and the appellate Courts should deal with the case, while considering the bail or while appreciating the evidence. Some of the decisions are: (i) State of Punjab vs. Gurmit Singh (9 supra); Bodhisattwa gautam vs. Subhra Chakraborty; State of Rajasthan vs. Narayan. ( 15 ) THE Apex Court is of the view that rape is not only a crime against women (victim), but also a crime against the entire society. In fact it destroys the entire psychology of women and pushes her into a deep emotional crisis. It is a crime against basic human rights and it violates the victims most cherished fundamental right viz. , the right to life contained in Article 21. The right to life does not merely mean animal existence, but means something more, viz. , right to live with human dignity. The right to life would include all those aspects of life which go to make a life meaningful, complete and worth living. Woman also have such a right to life and liberty. They also have the right to be respected and treated as equal citizens. They also have the right to lead a honourable and peaceful life. Women, in them, have manly personalities combined. Woman also have such a right to life and liberty. They also have the right to be respected and treated as equal citizens. They also have the right to lead a honourable and peaceful life. Women, in them, have manly personalities combined. They are mother, Daughter, Sister and Wife and not play things. They must have the liberty, freedom and independence to live their roles assigned to them by nature, so that the society may flourish as the woman alone have the talents and capacity to shape the character of the men. ( 16 ) A rape is not merely a physical assault. It is often destructive to the whole personality of the victim. A murderer merely destroys the body of the victim, but a rapist degrades the very soul of the helpless female. In the instant case, the very manner in which the crime was committed by a gang of four, committing rape five times gives shock waves to the listeners. If the allegations are true, I would rather say that the petitioners have behaved worse than the animals. The manner in which this atrocious and bizarre crime committed by the petitioners would certainly debar them from seeking any sort of indulgence. ( 17 ) NO doubt, liberty to a citizen must be zealously safeguarded by a Court. But, however, when the person are accused of a serious offence like gang rape, liberty is to be secured through due process of law, which is administered keeping in mind the interest of the accused, the feelings of the victim, who lost her honour, and who feels helpless and believes that there is no justice in the world, as also collective interest of the community, so that the parties do not lose faith in the institution and indulge in private retribution. ( 18 ) FINALLY, as quoted above, the learned Counsel for the petitioners, by citing an authority in Mohammed Iqbal Madar Sheik and others vs. State of Maharashtra (1 supra) submitted that when the accused were entitled to be released on bail under Section 167 (2) of the Code of Criminal Procedure, the statutory right should not be defeated by keeping the application pending till the charge-sheet is submitted so that the right which had accrued is extinguished or defeated. But, as far as the case on hand is concerned, this decision will not help the petitioners in any way since in this case, the preliminary charge-sheet has been filed on 7-11-1997 and the final charge-sheet had been filed on 14-11-1997. No doubt, it is true that as stated above, the petitioners filed an application under Section 167 (2) of the Code of Criminal Procedure in the office, but the same was taken back by the Counsel for the petitioners as not pressed. ( 19 ) FURTHER, as laid down in State through CBI vs. Mohammed Ashraf Bhatt and another; Sanjay Dutt vs. State of Maharashtra; State of Madhya Pradesh vs. Ruston and others; Hitendra Vishnu Thakur vs. State of Maharashtra the decision of a division Bench of this Court in Vetriselvi vs. Station House Officer, Portnovo and the decision of a learned single Judge of this Court in Swami Premananda vs. The inspector of Police, Pudukottai, it is held that the right of compulsive bail under section 167 (2) of the Code of Criminal Procedure does not survive after filing of the charge-sheet. It was specifically mentioned in these decisions that the court is required to examine the right of compulsive right on the date of considering the question of bail, but not barely on the date of presentation of the petition for bail. ( 20 ) THEREFORE, when this application was considered finally for bail on 17-11-1997, it was reported that preliminary charge-sheet was filed on 7-11-1997 and the final charge-sheet was filed on 14-11-1997. Therefore, the oral prayer seeking relief of bail under Section 167 (2) of the Code of Criminal Procedure would not have any merit in the fact situation, especially when this Court takes the view, that there are prima facie materials available in this case. ( 21 ) UNDER the above circumstances, I feel that the petitioners are not entitled to bail till the important witnesses are examined in this case in the trial, and that alone would ensure the situation for the fair conduct of the trial. Therefore, the petition in my view is liable to be dismissed. ( 21 ) UNDER the above circumstances, I feel that the petitioners are not entitled to bail till the important witnesses are examined in this case in the trial, and that alone would ensure the situation for the fair conduct of the trial. Therefore, the petition in my view is liable to be dismissed. ( 22 ) BEFORE concluding, it has become necessary to point out some of the observations made as regards the conduct of the trial in a rape case in State of punjab vs. Gurmit Singh (9supra), which are as follows:-"the expression that the inquiry into and trial of rape" shall be conducted in camera" as occurring in sub-section (2) of Section 327, Cr. P. C. is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably in camera. The Courts are obliged to act in furtherance of the intention expressed by the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of section 327 (2) and (3), Cr. P. C. and hold the trial of rape cases in camera. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar surroundings. Trial in camera would not only be keeping with the self respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open Court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. The High courts would therefore be well advised to draw the attention of the trial courts to the amended provisions of Section 327, Cr. P. C. and to impress upon the Presiding Officers to invariably hold the trial of rape cases in camera, rather than in the open Court as envisaged by Section 327 (2)Cr. The High courts would therefore be well advised to draw the attention of the trial courts to the amended provisions of Section 327, Cr. P. C. and to impress upon the Presiding Officers to invariably hold the trial of rape cases in camera, rather than in the open Court as envisaged by Section 327 (2)Cr. P. C. Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available so that the prosecutrix can make her statement with grater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. We need say no more on this aspect and hope that the trial Courts would take recourse to the provisions of Section 327 (2) and (3) Cr. P. C. liberally. Trial of rape cases in camera should be the rule and an open trial in such cases an exception". Since the Apex Court observed the necessity of trial of rape cases by lady judges, in camera the Principal Sessions Judge, Pondicherry may give due importance to such observation and direct the Court concerned, to have expeditious disposal of this case. However, the trial Court is to note that any observation or expression made in this order for the purpose of considering the bail application, need not be taken as the opinion on the merits of the case. Therefore, the learned trial Judge shall proceed with the case in accordance with law and uninfluenced by any of the observations made in this order. ( 23 ) BEFORE I part, I intend to place on record my appreciation for the valuable assistance rendered by Mrs. K. Shanthakumari, representing the Woman lawyers Association, who has taken pains in assisting the Court. ( 24 ) IN the result, in view of the observations made above, this petition is dismissed.